Murlan Consulting Pty Ltd v Ku-ring-gai Council

[2007] NSWLEC 704

Land and Environment Court

of New South Wales

CITATION:	Murlan Consulting Pty Ltd v Ku-ring-gai Council and Anor [2007] NSWLEC 704
PARTIES:	APPLICANT Murlan Consulting Pty Ltd FIRST RESPONDENT Ku-ring-gai Council SECOND RESPONDENT John Williams Neighbourhood Group Inc
FILE NUMBER(S):	11193 of 2006
CORAM:	Pain J
KEY ISSUES:	Appeal :- s56A appeal on question of law - whether questions of law raised - whether failure to take into account a relevant matter in reaching a finding of fact gives rise to an error of law - appropriate use of Commissioners' own expertise - whether breach of procedural fairness because of conduct of on-site hearing - whether notice must be given to parties if planning principle to be formulated.
LEGISLATION CITED:	Environment Protection And Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 s 5A, s 78A, s 79B Land and Environment Court Act 1979 s 12, s 33, s39A, s 56A, s69 State Environmental Planning Policy (Seniors Living) 2004 Threatened Species Conservation Act 1995 Sch 3
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Bonim Stanmore Pty Limited v Marrickville Council [2007] NSWLEC 286; Brewarranna Pty Limited v Commissioner of Highways (No 2) (1973) 6 SASR 540; Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Maygood Australia v City of Sydney [2007] NSWLEC 388; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Minister for Aboriginal Affairs v Peko-Wallsend (1985) 162 CLR 24; Murlan Consulting Pty Limited v Ku-ring-gai Council and John Williams Neighbourhood Group Inc [2007] NSWLEC 182; Murlan Consulting Pty Limited v Ku-ring-gai Council [2007] NSWLEC 374; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330; St Helen’s Landcare and Coastcare Group Inc v Break O’Day Council (2007) 151 LGERA 431; SZBEL v Minister for Immigration (2006) 227 CLR 152; The Australian Gaslight Company v The Valuer-General (1940) 40 SR (NSW) 126
DATES OF HEARING:	18 October 2007
DATE OF JUDGMENT:	29 October 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr Galasso SC SOLICITOR Mallesons Stephen Jaques FIRST RESPONDENT Mr Griffiths SC with Ms Wright SOLICITOR Deacons SECOND RESPONDENT Mr Ireland SOLICITOR Balke Dawon Waldron

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

29 October 2007

11193 of 2006 Murlan Consulting Pty Limited v Ku-Ring-Gai Council and Anor

JUDGMENT

1 Her Honour: This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) against the decision of Commissioner Watts and Acting Commissioner Taylor in Murlan Consulting Pty Limited v Ku-ring-gai Council [2007] NSWLEC 374 delivered 26 June 2007 dismissing the Applicant’s Class 1 appeal. An appeal under s 56A must be made in relation to errors of law.

2 The development application before the Court was for the restoration of an existing building, demolition of some buildings, and the erection of 78 units pursuant to the State Environmental Planning Policy (Seniors Living) 2004. A preliminary issue concerning permissibility was determined by Preston J; Murlan Consulting Pty Limited v Ku-ring-gai Council and John Williams Neighbourhood Group Inc [2007] NSWLEC 182.

3 The site has an existing heritage item “Rippon Grange”, which is listed on the local heritage register of the Council. Paragraph [8] of the Commissioners’ judgment states:

The land contains a remnant Blue Gum High Forest that is located mainly along the southern and eastern boundaries. The applicant referred the application to the Commonwealth Minister for Environment and Heritage under the Environment Protection and Biodiversity Conservation Act 1999, (EPBC Act). The Minister determined that the proposal is not a controlled action and that further assessment and approval is not required under the EPBC Act.

Grounds of Appeal

4 The grounds of appeal and references to the Commissioners’ judgment are as follows:

Conservation Plan

1. The Commissioners erred in law by failing to take into account a relevant consideration, namely that the conservation plan, exhibit L, was a draft plan: [39].

2. The Commissioners erred in law by failing to take into account a relevant consideration, namely the final conservation plan.

3. In rejecting the final conservation plan for the draft conservation plan, the Commissioners erred in law by making a finding:

(a) in the absence of evidence to support that finding; or alternatively

(b) without affording to the parties, including the Applicant, notice of the making of such finding; or alternatively

(c) without providing sufficient reasons for the making of that finding.

Blue Gum High Forest

4. The Commissioners erred in law by failing to take into account a relevant consideration, namely that the Blue Gum High Forest (BGHF) on the subject land formed part of a wider cluster: [84].

5. The Commissioners erred in law in the formulation of criteria relevant to the subject site at [87]:

(a) in the absence of evidence to support such findings, including a Species Impact Statement as that term is defined in the Threatened Species Conservation Act 1995 (the TSC Act); or alternatively
(b) without providing to the Applicant any or any sufficient notice of the Court’s intention to do so.

Formulation of planning principle

6. The Commissioners erred in law in formulating a “planning principle”:

(a) in terms which do not comprise a “planning principle”, or alternatively
(b) contrary to the proper operation of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and the TSC Act; or alternatively
(c) without any evidentiary foundation; or alternatively
(d) without affording to the Applicant sufficient notice for the making of such a principle.

7. The Commissioners erred in law in making a finding in relation to the height of any development on the subject land at [98]:

(a) without any evidentiary foundation; or alternatively
(b) without affording to the Applicant sufficient notice of its intention to make such a finding.

8. The Commissioners erred in law by failing to accord to the Applicant procedural fairness:

(a) At case management on 16 February 2007 before Senior Commissioner Roseth, the Applicant was told by the Senior Commissioner not to amend the development proposal in response to the Council’s Statement of Issues dated 19 January 2007 as such amendments could be accommodated as part of the hearing.
(b) In accordance with the Senior Commissioner’s request, the Applicant did not seek to amend the development proposal in response to the Council’s Statement of Issues prior to the hearing.
(c) On 28 May 2007, the Applicant advised the Commissioners of the request of the Senior Commissioner and indicated that the Applicant wished to address the following matters:
(i) the issues of impact of building footprint on the area of the subject site mapped as BGHF by Dr Peter Smith, court appointed expert in the field of ecology.
(ii) alterations to the design recommended by the Heritage Council; and
(iii) issues raised by the Commissioners themselves in relation to the pitch of the roofs.
(d) On 28 May 2007, the Commissioners refused an application by the Applicant to amend plans in accordance with schematic plans which directly addressed the issues referred to above.
(e) The refusal referred to in particular (d) was made without giving proper or apparent reasons for that refusal.

9. The Commissioners erred in law in failing to accord to the Applicant procedural fairness in the circumstances of the extent and manner in which it received from, and directed presentations to, objectors.

10. The Commissioners erred in law in that the Commissioners should not have heard the matter but should have disqualified themselves on the ground of apprehended prejudgment.

Overall submissions of the Council

5 The Council argued that:

(i) Grounds 1, 2, 3, 4 and 5 were not challenges which raised errors of law. The challenges are to findings of fact which are not open to a challenge of failing to take into account a relevant consideration.

(ii) The procedural fairness grounds (8, 9, 10) are baseless. There is no obligation on the Court to disclose its deliberative processes in the course of selecting between competing evidence, see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, approved in SZBEL v Minister for Immigration (2006) 227 CLR 152 at [29] – [32].

(iii) Overall the appeal is an unfair analysis of the Commissioners’ reasons, which must be considered in their entirety.

6 The Second Respondent made submissions on grounds 4 and 5 concerning the BGHF only.

Grounds 1, 2 and 3 - Conservation plan

7 At the time of the sale of the property, a draft heritage conservation plan had been prepared by Rod Howard Heritage Conservation Pty Limited. That draft plan became exhibit L.

8 Subsequent to the sale of the land, the draft conservation plan was amended and became the final Conservation Management Plan. That final plan (exhibit F) had altered recommendations concerning the ability to redevelop land in and around the curtilage on Rippon Grange. It allowed more development within the curtilage than the draft plan.

9 The draft and final conservation plans were in evidence before the Commissioners and there was cross examination of the author Mr Lumby about them. Reference to the two plans and the cross-examination is set out in the judgment at [38] – [61] and the Commissioners’ conclusions about his evidence are at [62]. They also consider evidence from the Heritage Office and draw their final conclusion at [68] as follows:

Despite the reservations of some of the witnesses we are satisfied that the original heritage curtilage in the Conservation Plan 2001 should not be abandoned and should be considered along with later versions as it is based on the definition set out in the Heritage Office publication ‘Heritage Curtilages’ (1996) and focuses on the heritage significance of ‘Rippon Grange’ and its gardens. Within the original curtilage some building is permitted. The proposed ‘Heritage Curtilage and Significant View Corridors Plan’ in the Conservation Management Plan of July 2006 has no such provenance, and appears to have been generated by other factors than the importance of the place, [Note: Exhibit F, Annexure 15, p 136]. The ‘Recommended Development Constraints’ plan also appears to bear little relationship to the original 2001 heritage curtilage or the modified 2006 version.

Applicant’s submissions

10 The Applicant argued that the Commissioners erred because they failed to take into account a relevant consideration, the 2006 conservation plan for the site, but instead had regard to and applied the draft conservation plan prepared in 2001 by the same heritage consultant. The Commissioners erred because the plan they applied was a draft. There was no evidence to support such an approach.

11 Notwithstanding that the draft plan was expressed in those terms, the Commissioners, at [39] essentially eschewed the status of that plan as a draft on the basis that:

… as far as we can determine the only place in the document that the word ‘draft’ is used is on the cover. Every page of the document is headed … Conservation Plan .

In the alternative, by focussing upon the fact that the word “draft” appeared only on the cover page of the draft plan, the Commissioners failed to take into account a relevant consideration namely that the plan in fact was a draft which by definition makes in unfinished and incomplete.

12 No issue was raised or evidence adduced in the case testing the veracity of the draft conservation plan and the final Conservation Management Plan in terms of satisfaction or otherwise of either of the plans or the document “Heritage Office Publication ‘Heritage Curtilages’ (1996)”. This notwithstanding, the Commissioners rejected the final Conservation Management Plan on the basis that the later plan complied less with that publication than the earlier one. This was not the subject of any evidence before the Court.

13 In the absence of evidence supporting that finding, the Commissioners have erred in law; The Australian Gaslight Company v The Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Bonim Stanmore Pty Limited v Marrickville Council [2007] NSWLEC 286 at [9] – [14].

14 Further, the Commissioners should have given warning of the course they adopted in rejecting the final Conservation Management Plan in favour of an earlier draft.

Finding on grounds 1, 2 and 3

15 I intend to largely adopt the Council’s submissions and do not therefore set these out separately. I agree with the submissions of the Council that there was no error of law demonstrated in the Commissioner’s reasons in relation to grounds 1 and 2. Those grounds allege a failure to take into account a relevant consideration. On the assumption that the matters raised are mandatory relevant considerations (which is disputed) they were clearly considered in the judgment as part of the Commissioner’s reasoning process as set out at par [38] – [70]. The Commissioners decided to accord the 2001 plan more weight than the later 2006 plan. Attribution of weight to particular evidence does not give rise to a question of law in the absence of a ground based on Wednesbury unreasonableness. Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 per Clarke JA (McHugh and Hope JJA concurring) at 333-334, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA (Samuels JA concurring, Kirby P agreeing on the result) at 155-156.

16 The judicial review ground of failing to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a mandatory consideration as required by statute, see Minister for Aboriginal Affairs vPeko-Wallsend (1985) 162 CLR 24, per Mason J at 39. The Applicant is seeking to attack a fact finding exercise by the Commissioners and there is no error of law disclosed on that basis in relation to this process; see St Helen’s Landcare and Coastcare Group Inc v Break O’Day Council (2007) 151 LGERA 421 at [55] – [56], Azzopardi at 155-156.

17 Ground 3 (rejecting the draft conservation plan, without evidence, without notice to the parties and without sufficient reason) must also fail firstly because it is debatable that it raises any question of law as the Council submitted. If it does, the evidence before the Commissioners is identified in their judgment (see par 9) and the reasons for their conclusions are also outlined at [62] and [68]. The reasons provided are based on evidence and are clearly sufficient to demonstrate the basis for the Commissioners’ findings.

18 There is no legal error raised by the particulars of that ground alleging that the Commissioners were obliged to advise the parties of their intention to make the finding of fact that they did. The judgment discloses the Commissioners’ reasoning on the basis of the evidence before them. There is no further obligation to disclose to the parties their deliberative processes. As set out above in par 5(ii), the Council made a general submission that there is no obligation on a tribunal to disclose before final judgment its deliberative processes when selecting between competing evidence, relying on Alphaone which was adopted by the High Court in SZBEL at [29] – [32]. I adopt that submission also.

Blue Gum High Forest
Ground 4 - failure to take into account BGHF on site as part of wider cluster

19 Ground 4 alleges that the Commissioners erred in law as failing to take into account a relevant consideration, that BGHF was part of a wider cluster. The initial issue raised by the evidence was whether there was critically endangered BGHF on the site, as defined under the TSC Act. The court appointed ecological expert Dr Smith found that there was evidence of endangered BGHF in a report provided to the parties about two weeks before the hearing. He had previously found that there was no BGHF as defined under the Environment Protection And Biodiversity Conservation Act 1999 (the EPBC Act) (Cth). The Commissioners accepted his opinion that there was such a community on the site, see [71] – [80] of the judgment. At [81] the Commissioners concluded that the development application was inadequate because:

(a) it did not assess the impacts of the development on the BGHF adequately as required by s 5A of the EP&A Act (the seven part test);

(b) did not address the effects of a key threatening process, the clearing of native vegetation BGHF at the site as required by Sch 3 of the TSC Act;

(c) it did not address s 79B(3) of the EP&A Act.

20 The evidence of Dr Smith concerning the amount of BGHF likely to be lost if the development were approved was identified in the judgment at some length. The cross-examination of Dr Smith was considered at [82] – [86]. In the cross-examination it was suggested that in determining impact, the fact that the trees on the site were part of a wider cluster of BGHF beyond the site meant that the impact of the loss of BGHF trees on the site was less This approach, submitted by the Applicant, was rejected by the Commissioners who considered at [84] that the loss of the trees could not and should not be offset or lessened by the fact that there were other trees on neighbouring properties which were part of the same BGHF community.

21 The Applicant argued that the Commissioners rejected the correct approach in considering the effect of the subject development upon the endangered ecological community comprising not only the community on the subject land but also ancillary parts of that community as forming part of the cluster; [83]-[84]. Even more erroneously, the Commissioners constrained consideration of the community for the purposes of the assessment of the threshold question to the cadastral boundary of the subject site, an approach which is contrary to the proper interpretation of the question posed by s 78A of the EP&A Act, [84]. This error is compounded by rejecting the proper interpretation by reference to emotive concepts such as “death by a thousand cuts”, [85].

Council’s submissions

22 The Council argued that in the context of the facts before the Commissioner ground 4 is misconceived. Firstly, for the reason already stated that it does not raise an error of law as it relates to fact finding, secondly, assuming there is an error of law, there is clearly reference which is more than lip-service to the fact that the BGHF on the subject land formed part of a wider cluster. Extensive reference is made in the judgment to Dr Smith’s evidence to that effect. The decision complained of really concerns the attribution of weight, not a question of law.

Second Respondent’s submissions

23 The Second Respondent argued that there is a short and complete answer to ground 4 because the Commissioners did take into consideration that BGHF is part of a wider cluster as is clear from their judgment at [71] – [85]. There is no failure to consider the evidence, but a finding about the relative weight given it by the Commissioners. A complaint about a Commissioner’s attribution of weight to evidence is not one alleging any error of law, Randwick, Azzopardi at 155-156. If the Applicant’s real complaint is that the Commissioners did not agree that there was any merit in the Applicant’s submission at the hearing that the significance of the clearing of BGHF being cleared gets less because there is BGHF in surrounding areas, this is not a complaint alleging a legal error but a complaint about a merits determination.

Finding on ground 4

24 I agree with the submissions of the Council and the Second Respondent. The Applicant fails on this ground.

25 Although unnecessary to consider any further argument on the ground of challenge as posed, I note that the Applicant’s argument was in part that the proper (and only) interpretation of s 78A of the EP&A Act was that the finding of significant impact on an endangered population required that the population must be assessed beyond the boundary of the site. Section 78A deals solely with the requirement that a species impact study must accompany a development application proposing development likely to have a significant impact on an endangered population. That is not the legal issue raised by this ground of challenge. As the Second Respondent stated in written submissions:

If the Applicant’s real complaint is that the Commissioners did not agree that there was any merit in the Applicant’s submission at the hearing that the significance of the clearing of BGHF occurring on the development site diminishes as the percentage of BGHF being cleared gets lower (the more BGHF is identified in surrounding areas prior to the development), this is not a complaint alleging any error of law but a complaint about the Commissioners’ merits determination.

Ground 5 – erred in formulation of criteria at [87] of judgment

26 The Commissioners stated at [87]:

The BGHF needs to be afforded the maximum protection given its perilous remnant state and spatial coverage. For the reasons discussed below a range of steps need to be undertaken and considered to ensure the continued health and vigour of BGHF. These include:

· The development of buildings and related infrastructure outside of the footprint of the Blue Gum High Forest. Any such future development would need to have a minimum buffer determined by the canopy spread or 3m from the trunk as per the council’s tree preservation order [Note: Referred to in Exhibit 1, pp. 82-83], whichever is the greater.

· Future assessment has to take into account and establish properly the effects of shading, impacts on sub and surface hydrology, root zone disturbance and other edges effects that would ensue from any excavation, underground and above ground development that may occur.

· While adjoining patches of BGHF are significant for the maintenance of the ecological community as a whole, they cannot be considered in exchange for either offset or as component in any calculation for a development proposal that aims to remove or degrade the BGHF at ‘Rippon Grange’. Any future applicant for development should only consider the vegetation that is within the boundaries of the land.

· Where species or communities have been listed as critically endangered, the preservation and protection of a few neighbouring isolated trees can contribute to the long-term viability of a greater community and should be preserved. No community can regenerate if the seed banks or sources of those seeds have been removed.

· Where a community once existed there remains a distinct possibility that viable seed banks may be retained in the surrounding soils. Therefore, even where fire hazard reductions of the understorey have been undertaken it is quite possible that viable seed banks will remain in the soil such that natural regeneration has the potential to occur particularly, when assisted by sensitive planning and environmental management.

· With respect to the connectivity and fragmentation of endangered and critically endangered species, a few remaining trees may well provide a critical link to maintaining and contributing to the long-term viability of refugia. Indeed, the cross-pollination of fragmented individuals and stands of eucalypt trees (including BGHF) may occur over extended distances.

· While seed dispersal contributes to regeneration it is less significant and effective than the genetic transfer associated with pollination. Pollination occurs in eucalypts such as those characterising the BGHF via a variety of active, non-specific pollinating vectors such as generalist insects and animals.

· Insects regularly disperse pollen over 100m but they also have the capacity to disperse pollen over distances of at least 1.6km. Species of eucalypts (including BGHF) that are subject to pollen dispersal by larger animals such as birds (e.g. lorikeets) are likely to be subject to cross-pollination over significantly longer distances. Such distances may be as great as 6km from a pollen source for eucalypts. Consequently, even relatively distal and isolated species can contribute significantly to the long-term genetic viability of endangered and critically endangered communities.

· In terms of protecting ecological communities, buffer zones play a significant role in mitigating undesirable edge effects associated with urban development. Edge effects are more marked in narrow buffers. Thus it would be prudent where feasible to maintain as a large a buffer as possible. Even where exotic vegetation surrounds native bushland (including BGHF), the removal of such vegetation is likely to have a negative impact, especially when it is replaced by urban development. Due to the effects of light, runoff, litter etc.

· An applicant should avoid development that would truncate, fragment or disconnect a BGHF stand at ‘Rippon Grange’.

27 The Applicant submitted these steps were not the subject of the issues in the proceedings. The question in the proceedings was whether the development was likely to significantly affect the BGHF. The setting out of the steps at [87] constitutes a constraint upon the redevelopment of land created in a vacuum of evidence, and without affording to the Applicant any opportunity to address those matters.

28 It seems, as is apparent from the absence of any evidentiary basis for the making of the steps, that [87] constituted the personal views of the Commissioners. To constrain a site in the manner provided by [87] without any issue being directed towards the formulation of development constraints is to constitute an error of law.

29 Furthermore, it is clear that in terms of the conduct of the proceedings there was no forewarning to the Applicant of a course ultimately adopted by the Court in formulation of development constraints, thereby denying the Applicant procedural fairness.

Finding on Ground 5

30 It is clear from reading the judgment that [87] is obiter and does not form part of the ratio of the Commissioners’ decision. The Commissioners had already concluded at [86] that development consent ought not be granted. It therefore has no binding legal effect on any future decision made by this Court. It is unlike the situation in Bonim Stanmore v MarrickvilleCouncil [2007] NSWLEC 286, where the finding found to be in error was “crucial and determinative” in the Commissioners’ decision (nor is there an error of law as was found in that case).

31 Paragraph [87] reflects the Commissioners’ views of the evidence and their findings about the BGHF on the site. It should not be criticised as an unnecessary and improper imposition of the Commissioners’ personal views. It is responsive to the issues and the evidence before the Commissioners, as identified in the Second Respondent’s written submissions at [23]-[25] and in the table at [26]. In making these findings I have adopted the submissions made by the Council and the Second Respondent and do not need to set these out separately in this judgment.

32 It also reflects basic ecological knowledge which those appearing before the Court as legal and expert representatives should be familiar with and contains no “surprises” on my reading. Rather, the matters are self-evident in the context of ecological issues concerning a critically endangered vegetation population. The matters referred to are matters which commissioners of this Court are familiar with.

33 In relation to the arguments raised by the Applicant for both grounds 4 and 5, reliance was placed by the Applicant’s counsel on Brewarranna Pty Limited v Commissioner of Highways(No 2) (1973) 6 SASR 540 at 544 where the role of the judge in fact finding involving expert opinion was considered. Wells J stated:

I have always taken the view, and shall continue to do so unless directed by a superior Court to do otherwise, that the creation of a special Division in a Court to deal with a particular class of case is not intended to turn the presiding judge into an independent expert in the very field in which testimony will be tendered to him that he will be called on to evaluate. It would never occur to a trial judge who, for example, had heard many cases in which expert medical knowledge had been tendered, to choose between the conflicting testimony of two medical witnesses by applying to it his own medical knowledge. That knowledge would, no doubt, have been of inestimable value in understanding the testimony; in suggesting questions; in comparing one set of opinions with another. But it would be quite contrary to principle, I apprehend, for the judge to bring a third set of opinions into the arena, and to supplement or condemn testimony properly adduced before him in reliance on his own theoretical grasp of principles and precepts of medicine.

34 That passage does not reflect the role of expert commissioners in this Court sitting in a merit appeal where they are expected to exercise their professional judgment in undertaking a merits assessment. This is a specialist court established by statute to consider a wide range of environmental legal and merit matters. The commissioners appointed under s 12 of the Court Act are required to have expertise in areas relevant to the Court. Ecological/environmental science expertise is one of those areas. Commissioners sit as the Court when exercising their functions in Class 1 merit appeal proceedings under s 33(1) of the Court Act. Under s 38(2) of the Court Act the rules of evidence are dispensed with and allow commissioners to inform themselves as they see fit, which includes drawing on their own experience. Under s 39(2) the commissioners “stand in the shoes” of the council as the administrative decision-maker when making their decisions. Such bodies have their own knowledge and expertise which they apply. The quotation relied on above by the Applicant, which is from an older decision of a single judge exercising different functions in another jurisdiction to those of this Court in Class 1 proceedings, is not relevant to the task commissioners undertake in Class 1 proceedings.

35 In this case one of the Commissioners has extensive academic and practical experience as an ecologist/environmental scientist. He is expected to apply that expertise in the cases that he hears, that being one of the reasons for his appointment as a commissioner under the Court Act. It is not appropriate to describe what the Commissioners did as simply applying their personal opinions in par [87], as the Applicant sought to characterise their evidence. They have done what is required of them, namely formed a view based on their own expertise and the expert material and opinion before them. They are not required to adopt that opinion. The matters the Applicant complained of are within the scope of the issues before the Commissioners and generally canvassed in the evidence heard by them. No error of law is disclosed in the judgment. The Applicant fails on this ground.

Ground 6 – planning principle

36 At [89] of their judgment, the Commissioners stated that:

There are individual trees in the northeast corner of the land identified by Dr Smith as being part of the BGHF and it is important that they be retained. These isolated plant species have not always been recognised as important and there is need to establish a planning principle:
Relatively distal and isolated plant species can contribute significantly to the long-term genetic viability of endangered and critically endangered communities and must be protected.

37 The Applicant’s arguments mirrored the particulars of the ground identified in the statement of grounds of appeal, set out in par 2. Firstly, the principle set out at [89] is not in the nature of the principle directed to planning but rather is the formulation and expression of an opinion to the effect that the Commissioners consider it is ecologically desirable to have BGHF protected in the stated manner.

38 Secondly, the principle to the extent that it must be taken to direct the approach to BGHF ignores the operation of the EP&A Act and the TSC Act insofar as both those Acts acknowledge that in circumstances where there is likely to be a significant effect, there is a requirement for the preparation of a species impact statement which is able to:

(a) address that effect;

(b) discuss it;

(c) address any ameliorative measures; and

(d) recommend an ultimate outcome.

That process has the potential to be the antithesis of the planning principle set out at [89].

39 Thirdly, there was no evidentiary foundation for the making of the planning principle. Not even the court appointed expert, Dr Smith, utilised the content of the principle in his determination of the extent of BGHF on the subject site. In fact, the evidence of Dr Smith is inconsistent with the “planning principle”.

40 Fourthly, the planning principle has been made without any notice to the parties and without affording any ability to address the content of the principle, thereby denying the Applicant procedural fairness.

Council’s submissions

41 The Council argued that ground 6 does not raise an error of law as planning principles are not legally binding, are entirely “obiter” in this case and did not form the basis for the Commissioners’ decision to refuse development consent. There is no procedural fairness obligation which requires that the Applicant be informed about the Commissioners’ intention to formulate a planning principle. It is not a matter where the Commissioners are making an adverse finding which affects the rights and interests of the parties and therefore a matter about which notice need be given. Nor is it required that the parties be given notice of the intention of a commissioner to formulate a planning principle.

42 Further, the planning principle was based on evidence in the case including the Final Determination of the Scientific Committee under the TSC Act and Dr Smith’s evidence.

Finding on ground 6

43 I agree with and adopt the Council’s submissions on this ground and accordingly it must fail. In terms of the first particular of the ground of appeal, that is, that the principle is not a planning principle, I am unclear what the basis for that submission is. The principle is concerned with a matter relevant to the exercise of the Court’s jurisdiction in Class 1 planning appeals and within the Court’s expertise.

Ground 7 – height of development on land

44 The Applicant alleged that the Commissioners’ findings on the appropriate height limitations on buildings in the curtilage of Rippon Grange as single storey plus attic ([98] of judgment) were not based on evidence and not made with proper notice of intention to the Applicant to make such a finding.

45 The Council argued that this ground alleging an erroneous finding on the desirable height restrictions was clearly based on the evidence before the Commissioners and about which they made findings of fact. No reviewable error of law arises.

Finding on ground 7

46 A reading of the judgment demonstrates that there was an evidentiary basis for the finding of the Commissioners at [98]. Appropriate limits on the height of development on the land, particularly within the curtilage of Rippon Grange, was clearly an issue raised by the evidence and issues in the case. There is no obligation on the Commissioners to give notice to the parties of their intention to make a certain finding on the evidence before doing so. They are simply determining the issues as presented to them by the parties. The Applicant fails on this ground.

Grounds 8 and 9 - failure to accord procedural fairness
Ground 8

47 The particulars of ground 8 are identified above in the statement of grounds of appeal in relation to the refusal by the Commissioners of the Applicant’s application to amend plans made on the fourth day of the hearing.

Applicant’s submissions

48 Firstly, the appeal was addressed by case management undertaken by the Senior Commissioner. At the time of case management, the Heritage Council had indicated its position with respect to certain buildings on the subject land, namely for a reduction in their height and a further setting back of one of the buildings. The Senior Commissioner specifically indicated at the hearing that those changes should be effected.

49 Secondly, the report of Dr Smith in relation to the NSW listing of BGHF was received only a matter of weeks prior to the commencement of the hearing. Dr Smith had, in December 2006, indicated that under the Commonwealth legislation (the EPBC Act) no BGHF as a community existed on the subject site. Consistent with the directive from the Senior Commissioner, changes to address a reduced footprint of the development (footprint being the subject of Dr Smith’s concern in terms of the number of trees affected by the proposed development) were not sought to be undertaken prior to the commencement of the hearing.

50 Thirdly, at the conclusion of the third day of the hearing, the Commissioners indicated that in the interim (on a part-heard basis) the Applicant might give consideration to altering the form of roofs to have development with pitched roofs with rooms in the roof, on the Applicant’s understanding, in buildings adjacent to Rippon Grange.

Council’s submissions

51 The Council argued that the transcript of the case management conference does not support the Applicant’s submissions about what was said. There was no direction by the Court to only make an application to amend plans at the hearing or that an application would be granted at the hearing. In any event even if there was there is no basis on which it can be argued that the Court was bound to grant such an application. The concept of legitimate expectation does not extend to confer a right to substantive enforcement of the content of the expectation. Issues relevant to amendment of the plan arose after the case management conference. There was nothing preventing the Applicant making an application at any time. When the application was made on the fourth day it was refused after submissions in support of the application were made. A procedural right of the Applicant to be heard in relation to an application to amend plans does not require that the application be granted.

52 The exercise of the Commissioners’ discretion in deciding to refuse the application to rely on amended plans should not be overturned lightly on appeal particularly on a procedural matter; see Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45].

Finding on ground 8

53 I agree with and adopt the Council’s submissions. This ground of appeal fails.

Ground 9

54 Ground 9, failure to accord procedural fairness due to the way evidence of objectors was received, was supported by an affidavit of Ms Townsend, solicitor, sworn 15 October 2007 which set out her description of the events at the hearing which included that a large number of objectors to the development were allowed to give verbal evidence on the site and ask questions of the Applicant’s experts. A lengthy explanation of the plans by the Applicant’s architect, Mr Tanner, was also given to objectors who could comment in the course of this. A number of the same objectors asked multiple questions and made comments during Mr Tanner’s presentation of the plans and models. The Court also visited adjoining properties and allowed extensive verbal evidence to be given. Objectors who were not the owners of adjoining properties were also able to give evidence. She annexed to her affidavit notes she made during the course of the two day inspection.

55 This evidence was used as the basis for the Applicant’s submission that the process at the hearing on site did not accord procedural fairness to the Applicant because a large number of objectors were able to give repetitive evidence about their concerns and were able to interrupt the presentation of the Applicant’s case over two days. The amount of time allowed to objectors and the way they were able to behave suggested that the Court had lost control of the proceedings and consequently the process was unfair to the Applicant.

Finding on ground 9

56 The precise nature of the procedural unfairness accorded to the Applicant from the process complained of was unclear from the submissions. It was argued that the process at the hearing on site resulted in an overwhelming amount of evidence before the Court critical of the proposed development which the Applicant could not overcome. It is not clear there is any basis for making that submission. As identified by the Council there is no reference at all in the judgment to evidence of any objectors, suggesting this was not the basis for any of the Commissioners’ findings. Further there were rulings by the Commissioners in favour of the Applicant on some objections raised about the conduct of the proceedings in relation to objectors. There is no apparent failure to accord procedural fairness to the Applicant. This ground fails.

Ground 10

57 The Applicant argued that because of appeal grounds 1, 2, 3, 4, 5 and 6 there was an apprehension of bias by the Commissioners. This was not apparent until the judgment was delivered.

58 The Council argued that no objection on the grounds of bias was made in the course of the hearing, which is the proper time to raise such allegations. Even if able to be raised now there is no evidence of apprehension of bias or prejudgment. The judgment considers the Applicant’s arguments and give reasons.

Finding on ground 10

59 Given that I have not upheld any of the earlier grounds of appeal relied on by the Applicant to support this ground there does not appear to be any basis for considering this ground. I otherwise agree with the Council’s submissions. Ground 10 also fails.

60 I consider this appeal offends the oft-quoted principle that s 56A appeals should not adopt a “fine-tooth comb approach” in seeking to identify multiple errors of law, see for example Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 at 368.

61 A further comment in response to some of the Applicant’s submissions is that there is no obligation on commissioners to adopt the opinions of expert witnesses before them. Nor is there an obligation to inform the parties during, or after, a hearing that they have decided not to do so before a final judgment is delivered, as I held recently in Maygood Australia v City of Sydney [2007] NSWLEC 388 at [41].

62 This appeal should be dismissed.

Costs

63 The Applicant has been unsuccessful in this s 56A appeal. The other parties have incurred legal costs in opposing the appeal and both have applied for their costs to be paid by the Applicant. I have broad discretion to award costs under s 69 of the Court Act. The usual costs order would be that costs follow the event unless there is disentitling conduct suggesting otherwise. There is not. The Council should have its costs paid.

64 The Applicant argued that the Second Respondent should not have a costs order in its favour. It was joined as a party pursuant to s 39A of the Court Act on its own application so that the Second Respondent chose to join in the process voluntarily. A costs order in its favour penalises the Applicant which did not commence proceedings against that respondent.

65 The Second Respondent was joined as a party and is entitled to some costs as it confined itself (appropriately) on the issues it wished to make submissions about. I consider the Second Respondent should have half its costs as it restricted its submissions to grounds 4 and 5 on the appeal.

Order

66 The Court makes the following orders:

1. The appeal is dismissed.

2. The Applicant is to pay the First Respondent's costs of this appeal as agreed or assessed.

3. The Applicant is to pay half the Second Respondent’s costs of this appeal as agreed or assessed.